Google, FCC Showdown Spotlights Technology Law Lag

By Peter Suciu
Apr 30, 2012 3:42 PM PT

Google is trying to do damage control and prove it had no nefarious goals with its ambitious Street View project, following an FCC into the search giant's collection and storage of data from millions of unknowing households across the country.

The Federal Communications Commission determined in its report that the data collection was not illegal; however, it slapped Google with a US$25,000 fine for obstructing its investigation -- a contention Google has denied. Instead, Google pointed a finger at the FCC for delaying its own investigation.

It could have ended there, but Google released the agency's full report of the investigation over the weekend, and in doing so revealed details that only served to raise new questions about its practices over a two-year period.

Google has continued to maintain that it was mapping wireless networks and that any data collected was "inadvertent."

"We decided to voluntarily make the entire document available except for the names of individuals," said Google spokeswoman Jill Hazelbaker. "While we disagree with some of the statements made in the document, we agree with the FCC's conclusion that we did not break the law. We hope that we can now put this matter behind us."

Behind or Beginning?

Releasing the report may seem a strange way for the search giant to put this investigation behind it. However, this could be a form of damage control, as Google first denied it collected the data, then maintained only fragments of data were gathered, and finally admitted its mistake before apologizing.

"I think they are trying to get this over with. This is an election year, and the DoJ appears to be staffing up to deal with Google more aggressively," Rob Enderle, principal analyst of the Enderle Group, told TechNewsWorld.

"Their release puts everything out there rather than having it leak out over time, resulting in old allegations looking new. Now it will all look like old news after a few weeks. It isn't a bad strategy, and given they did do this, their choices were limited."

It likely was also an affordable way out for Google -- but this could remain an issue for the FCC in future investigations.

"The $25,000 fine is not going to make a large company cooperate," Daniel Castro, senior analyst at the
Information Technology & Innovation Foundation, told TechNewsWorld. "There needs to be stronger penalties for companies that don't cooperate. Even if the company did nothing wrong, it might be cheaper to pay the fine and pay lawyers for six months to fight the investigation."

Laws Not Keeping Up With Technology

Although the FCC concluded in its report that collecting the data was not illegal, one question the controversy highlights is whether laws have failed to keep pace with technology.

"Yes and no," said David Johnson, visiting professor of law at
New York Law School. "The Electronic Communications Privacy Act (1986) exempts communication that is readily out there. Things such as low wattage radio signals, for example, are not protected by the wiretap laws."

In other words, unsecured WiFi signals that were sent out my not be readily protected by such laws.

"Even if there were an amendment to the law, private parties would still be exempt from communication that that can be readily received," Johnson told TechNewsWorld, adding that the law distinguishes between private and public communication.

"This also bleeds over to government surveillance," he said, "and there was a proposal to amend the Electronic Privacy Act on the collection of electronic data by governments against individuals."

The FCC investigation into Google is just the latest example where privacy and technology meet.

"No, the laws haven't caught up with technology, particularly with regard to privacy, and Google remains at risk of either being regulated, which has partially come to pass by nature of their consent decree, or being nationalized, given the resource they sell -- information on us -- arguably could belong to the state," added Enderle.

"They are doing their best by hiring ex-politicians, increasing their lobby budgets and staff, and making moves like this to avoid either outcome," he said. "Granted, it likely would be far more successful if they stopped getting caught violating people's privacy, but given their revenue model that may be a bridge too far."